D.N.UPADHYAY,J. - (1.) This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 21.09.2004 passed by the learned Sessions Judge, Dumka in connection with S.C.No.110/2004, corresponding to G.R.No. 696/2003, arising out of Jama P.S. Case No.71/2003 whereby the appellant has been held guilty for the offence punishable under Sections 302,376 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code and to pay fine of Rs.2,000/- and in default of payment of fine further R.I. for one year, R.I. for 10 years under Section 376 of the Indian Penal Code and to pay fine of Rs. 1000/- and in default of making payment of fine further R.I. for one year. The sentences so passed were directed to run concurrently.
(2.) The facts appearing from fardbayan of Rabi Lal Soren recorded on 19.07.2003 at 17:15 hours at Sadar Hospital is that on 13.07.2003 when the informant and his wife returned from 'Church', they found their daughter Miru, aged 8 years lying on a cot. When she was asked, she complained that she has been suffering with abdominal pain. The informant provided some harbal medicine. On the next day Miru Soren (deceased) while gone to graze animal, became unconscious and this fact was brought to the notice of the informant by one Rajan Baski. The girl was brought home and again some harbal medicines were provided. On 17.07.2003 while Miru Soren (deceased) accompanied by her mother went to ease herself, her mother noticed injuries on her private part which was badly torn and it was bleeding too. On her being questioned, Miru disclosed that she was ravished by Chandan Marandi on previous Sunday. Thereafter matter was brought to the notice of villagers and a 'Panchayati' was held in which the appellant admitted his guilt and accepted to provide expenses for treatment of Miru Soren. Miru was admitted to Hospital but could not survive. On the basis of fardbayan of Rabi Lal Soren, Dumka Jama P.S. Case No. 71/2003 under Sections 376/302 I.P.C. dated 19.07.2003 against the appellant was registered. The investigation was carried out and charge-sheet against the appellant was submitted. Accordingly, cognizance was taken and the case of the appellant was committed to the court of sessions and registered as S.T.No.110/2004. Charges under Sections 376/302 of the Indian Penal Code were framed to which the appellant pleaded not guilty and claimed to be tried. To substantiate the charge, the prosecution has examined altogether 14 witnesses and proved documents like fardbayan, postmortem report, formal F.I.R. etc. The learned Sessions Judge placing reliance on the evidence and documents available, held the appellant guilty and inflicted sentence as indicated above.
(3.) Learned Counsel appearing for the appellant has extended two fold argument. In the first part of the argument, it is submitted that the victim did not disclose the occurrence to anyone till 17.07.2003. She had simply complained about abdominal pain from which she had been suffering with. Only on 17.07.2003 Sunderi Marandi (mother of the deceased) noticed that vagina of Miru was torn and blood was oozing out. On repeated enquiry Miru replied that she was subjected to rape by appellant on last Sunday i.e. on 13.07.2003. P.W.1 (informant) and P.W.2 (wife of informant) have stated that 'Panchayati' was convened and the occurrence was brought to the notice of members present in the meeting. They had also seen injuries appearing on vagina of deceased. After having discussion, the appellant was also called in the meeting and he had undertaken to provide expenses for treatment of Miru and agreed to pay fine imposed upon him by the 'Panchayat'. It is argued that this fact was not stated by P.W. 3 to P.W.6 before the Police and that contradictions taken from the mouth of those witnesses were referred to I.O. to which he has replied that no such statement was given before him. It is argued that the deceased did not disclose the occurrence to any villagers, who have been examined in this case, except her parents P.W.1 and P.W.2. All the witnesses are hearsay and nobody had seen the occurrence. Nothing incriminating was found at the place of occurrence. The learned Sessions Judge has erred in holding the appellant guilty. The appellant has not confessed his guilty before anyone. No confessional statement has been brought on record. In the second fold of his argument, learned Counsel has submitted that the appellant has been held guilty for the offence punishable under Sections 376/302 of the Indian Penal Code but no offence under Section 302 of the Indian Penal Code is made out even admitting the evidence available on record true. The appellant was neither having intention to commit murder nor intending to cause any bodily injury to the deceased. If the evidence available on record is accepted, the intention of the appellant was to commit rape and for that he has been held guilty and sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,000/- under Section 376 of the Indian Penal Code. The evidence available on record does not attract any of the ingredients of Section 302 of the Indian Penal Code. The admitted fact on record is that alleged occurrence had taken place on 13.07.2003. The deceased was alive for about six days, she had made a complaint of abdominal pain to her parents for which harbal medicines were provided by her father. She was never taken to hospital for proper treatment. Injuries appearing on vagina were neither noticed by the parents nor disclosed by the deceased. Only on 13.07.2003, when the deceased had gone to answer the call of nature, her mother, who had been accompanying, had noticed injuries on vagina of deceased. Thus admitted fact is that no treatment was provided to deceased from 13.07.2003 to 17.07.2003. She was admitted to hospital for her treatment on 18.07.2003 and till then septicaemia developed and the deceased died due to shock and septicaemia. It is alleged that parents of the deceased were negligent and due to their negligence septicaemia developed which caused death of Miru. Even assuming it to be correct that septicaemia developed due to forceful penetration, it would not constitute the offence punishable under Section 302 of the Indian Penal Code. Last but not the least, it is submitted that conviction and sentence recorded under Section 302 of the Indian Penal Code is liable to be set aside. So far punishment inflicted under Section 376 of the Indian Penal Code is concerned, the appellant has already served out the sentence by remaining in jail for more than 12 years. ;